Outside play at nursery – whether condition enforceable

Day nurseries are often located within the residential areas which they serve and concerns raised by neighbours commonly relate to traffic generation and noise from children playing. In a Manchester case (DCS Number 400-009-857) the appellants wished to increase the number of children from seven to twelve and to extend the opening hours. Whilst the inspector was satisfied that noise transfer to the adjoining property could be addressed by means of acoustic boards along the party wall he was not convinced about the arrangements for outdoor play and the impact on the enjoyment of the adjoining garden. The appellant maintained that play times were staggered so that only small groups of up to four children would be outside at any one time – no different from children playing at a family home. A search of the Compass database reveals that a condition along these lines is frequently used in practice. In this case, however, the inspector came to the following conclusion; “Although a planning condition could be imposed, I am not persuaded that it would be enforceable due to the practicalities of detecting a contravention or remedying a breach”.

Given the speed at which small children run around it does seem that the inspector has a point here. If an enforcement officer is not to be stationed permanently on site the condition relies on neighbours monitoring the numbers of children playing outside, not a task which would contribute to the peaceful enjoyment of their property, which is what they were seeking to protect in the first place.

The following DCP chapter is relevant: 4.412

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